Federal Court Decisions

Date: 20020130

Docket: IMM-2565-00

Neutral citation: 2002 FCT 112

Ottawa, Ontario, Wednesday the 30^th day of January 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                                     FATTOUM CHAKRA

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    Ms. Chakra, the applicant, is described to be Palestinian and stateless. She came to Canada on September 23, 1993 and on May 6, 1994, Ms. Chakra was recognized to be a Convention refugee. On July 4, 1995, Ms. Chakra was advised that she was approved in principle for landing in Canada. Since then, however, Ms. Chakra has not been landed and by letter dated April 17, 2000 she was advised that she would not be landed, but that she would be permitted to remain in Canada so as to be afforded the protection of Canada pursuant to the Geneva Convention.

[2]    Ms. Chakra's application for landing was refused on the ground that she was a person described in clause 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") because of her membership in the Palestine Liberation Organization.

[3]    Clause 19(1)(f)(iii)(B) provides:

19.(1) No person shall be granted admission who is a member of any of the following classes: [...] (f) persons who there are reasonable grounds to believe [..] (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in [...] (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.		19.(1) Les personnes suivantes appartiennent à une catégorie non admissible_: [...] f) celles don't il y a des motifs raisonnables de croire qu'elles_: [...] (iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée_: [...] (B) soit à des actes de terrorisme, le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national.

[4]                 In the underlying application for judicial review Ms. Chakra seeks an order quashing that decision and an order compelling the Minister's officials to process her application for landing.

[5]                 Now before the Court is the Minister's motion, initially brought in writing under Rule 369 of the Federal Court Rules, 1998, for an order allowing the application for judicial review and sending the matter back for redetermination by a different officer. The ground for the motion is that the Minister has offered to consent to the application for judicial review.

[6]                 The Minister's consent is based upon the Minister's admission that she did not consider whether to exempt Ms. Chakra under paragraph 19(1)(f) of the Act and that the decision was improperly delegated. By direction of Prothonotary Lafrenière, the Minister's motion in writing was directed to be heard at the commencement of the hearing of the application for judicial review.

[7]                 Ms. Chakra opposes this motion on the ground that she wishes to have all of the issues which she raised determined by the Court. In her memorandum of argument and supplemental memorandum of argument Ms. Chakra raised the following issues:

1.          The immigration officer breached the duty of fairness in reaching her decision.

2.          The immigration officer's decision was unreasonable.

3.          Paragraph 19(1)(f) of the Act offends section 2 of the Charter of Rights and Freedoms ("Charter") and the decision made in this case offends section 2 of the Charter.

4.          Paragraph 19(1)(f) of the Act offends section 15 of the Charter, and the decision made in this case offends section 15 of the Charter.

5.          The decision made in this case breaches the principles of fundamental justice guaranteed by section 7 of the Charter.

[8]                 In Khalil v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1266; [2001] F.C.J. No. 1727 Justice Gibson considered a similar motion brought in similar circumstances. There, the respondent sought an order which essentially granted the applicants all that they sought on the application for judicial review. Justice Gibson concluded that the respondent's motion essentially rendered the application for judicial review moot. This was so notwithstanding that the respondent did not concede on all of the issues raised on behalf of the applicants.

[9]                 In so concluding, Justice Gibson wrote as follows at paragraph 8:

In Borowski v. Canada (Attorney General) [See Note 3 below] Mr. Justice Sopinka wrote at page 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

I am satisfied that here, subsequent to the initiation of this application for judicial review, an event occurred, crystalized in the Respondent's motion now before me, which has affected the relationship of the parties so that, if the Respondent's motion were granted, no present live controversy would exist which would affect the rights of the parties. There only remains for consideration whether this Court should exercise its discretion to depart from the general policy or practice of not considering moot cases. Factors to be taken into consideration in this regard are the following:

(1)            whether the parties retain an adversarial stake in the issues raised by this application for judicial review;

(2)            whether, in all of the circumstances, the issues on the application for judicial review are important enough to justify the judicial resources necessary to decide the case, in the sense that the decision would have some practical effect on the rights of the parties; and

(3)            whether the Court would be departing from its traditional role in adjudicating disputes if it decided the application for judicial review.

[Note 3:      [1989] 1 S.C.R. 342.]

[10]            I agree and respectfully adopt Justice Gibson's reasoning.

[11]            With respect to the three factors to be considered when exercising discretion to depart from the general practice of not considering moot cases, I am satisfied that in this case the second factor, judicial economy, is determinative.

[12]            In Borowski, supra, at page 360 the Court noted that the concern for judicial economy is partially answered if the Court's decision will have some practical effect on the rights of the parties, notwithstanding that it will not have the effect of determining the controversy which gave rise to the proceeding.

[13]            In the present case, I am unable to conclude that if the matter proceeds the result is likely to have a practical effect on the rights of the parties. This is so because the underlying proceeding is an application for judicial review of a particular decision, not an action for declaratory relief. The decision under review is conceded by the respondent to be flawed on administrative law grounds, not Charter grounds.

[14]            It is settled practice in Canadian law that if a case can be decided without dealing with a constitutional issue, a judge should not embark upon consideration of the constitutional issue. Thus, for example, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 Justice L'Heureux-Dubé for the Court stated at page 832:

Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position.

[15]            I am mindful that in the present case Ms. Chakra asserts that if successful on her constitutional arguments she would be entitled to an order of mandamus compelling the processing of her application for landing. However, as explained above, in view of the admitted error on administrative law grounds I have not been satisfied that if the application for judicial review proceeded that the constitutional issue would be decided.

[16]            In those circumstances, I am not satisfied that dismissing the respondent's motion and allowing the application to proceed would have a practical effect on the rights of the parties.

[17]            Further, it is speculative to assume that the result of the redetermination will be negative, leading to a further application for judicial review.

[18]            I have considered Ms. Chakra's reliance upon my decision in Chesters v. Canada (Minister of Citizenship and Immigration), 2001 FCT 783; [2001] F.C.J. No. 1135 where I concluded that the Crown's offer to settle did not render the proceeding moot. However, in my view the present case is distinguishable from that before the Court in Chesters because there, notwithstanding the Crown's offer to land Ms. Chesters, her claim for damages on the ground that her Charter rights were violated remained a live issue.

[19]            For these reasons, I have not been satisfied that the decision of Justice Gibson in Khalil, supra, is distinguishable, or that the Court should depart from the general practice that courts will not hear moot cases.

[20]            In the event the Minister's motion is allowed Ms. Chakra seeks the costs of this proceeding on a solicitor-client basis, and a direction that the Minister be directed to finally determined the issue of an exemption under paragraph 19(1)(f) of the Act within two months of this order.

[21]            In view of the fact that Ms. Chakra was required to bring this application for leave and to perfect it before the decision under review was admitted to be flawed, I am satisfied that special reasons exist so that Ms. Chakra should obtain her costs of the application for judicial review but not the costs of this motion. I am not satisfied that an award on a solicitor-client basis is justified. Therefore, if not agreed, the costs shall be taxed in accordance with Column III of the table to Tariff B of the Federal Court Rules, 1998.

[22]            I have not been satisfied that it is reasonable or necessary to issue the direction sought as to the time line in which the Minister should determine the issue of an exemption.

ORDER

[23]            IT IS HEREBY ORDERED THAT:

1.          The application for judicial review is allowed.

2.          The decision of the senior immigration officer dated April 17, 2000 is hereby set aside.

3.          This matter is sent back to be redetermined by a different senior immigration officer in accordance with the law.

4.          The respondent shall pay to the applicant her costs of this application for judicial review, but not the costs of this motion. If not agreed, such costs shall be assessed in accordance with Column III of the table to Tariff B of the Federal Court Rules, 1998.

"Eleanor R. Dawson"

                                                                                                                              Judge